Week 4: Law & Internet Seminar (LAW 745)

Free Speech and the Internet

Reading:

Free speech issues regarding the Internet come in many varieties. We have already seen how export control relates to free speech. Issues of libel, intellectual property, anonymous/pseudonymous speech are all relevant as well. The hot button issue, however, seems to be pornography. Under US law, not all pornography is "obscene," but only obscene speech can be prohibited. Even non-obscene speech can sometimes be regulated in special circumstances, especially to protect minors. Of course, laws and regulations differ abroad, being both more and less restrictive, while the Internet flows across almost all borders...

Review the CDA Decision, Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997). There are multiple copies online, but you want to be sure and find one that includes the footnotes. The ACLU copy has the footnotes as endnotes. I think the FindLaw version is probably the most readable. Other versions include the BNA version and the Cornell Project Hermes version.
Eugene Volokh, Freedom of Speech, Shielding Children, and Transcending Balancing
Pick another case from the ACLU On-line censorship page or the EFF what's hot page and read up on it.
Read about making imaginary sex illegal.
Free Speech Coalition v. Reno, 1997 WL 487758,1997 U.S. Dist. LEXIS 12212 (N.D.Cal. Aug. 12 1997)
I've written a short essay on Regulatory Arbitrage describing why it's hard to censor the Internet.

Doing:

Email me about your proposed paper topic

Optional

See how long it takes you to find some pornography on the Internet. Report the time, the method used, but not the URL, to the class mailing list.
Ramon G. MacLeod, San Jose Battle Over Library Online Porn Ban describes a battle being fought over whether Internet access should be censored in one public library. Another article by Courtney Macavinta, Librarians, locals mull Net filters describes similar debates in Texas.
An account of America OnLine's inconsistently applied attempts to enforce `decency'.
The text of the Oklahomans for Children and Family OCAF White Paper on Internet Pornography: "The Agincourt Project". See also their , promise to encourage prosecution of small fry and an unsympathetic account of the project.
New Age Comstockery: Exon vs the Internet, Robert Corn-Revere's Cato Institute Policy Paper (June 28, 1995). Although the CDA was much amended after this was written, the paper has lots of useful historical information.

Background to the CDA

It seems sensible to start with the text of the Act.
Here are some commentaries on the Act.

What Exactly Is He Banning?
Robert Cannon's (evolving) analysis
The Center for Democracy & Technology's self-confessed preliminary analysis.

Mike Godwin of the Electronic Frontier Foundation has written a short description of the difference between obscenity and indecency.
Some relevant cases

FCC v. Pacifica Foundation , 438 U.S. 726 (1978)
City of Renton v. Playtime Theaters, 475 U.S. 41 (1986).
Sable Communications v. FCC, 492 U.S. 115 (1989)
Fabulous Associates v. Pennsylvania Public Utility Com'n, 896 F.2d 780 (3d Cir. 1990).
Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995) (en banc), cert granted, 64 U.S.L.W. 3347 (U.S. Nov. 13, 1995) (No. 95-124).

The Alliance's press release about the granting of cert.
Mayer, Brown & Platt's analysis of the significance of the case.

Action for Children's Television v. FCC, 58 F.3d 654 (D.C.Cir. 1995) (en banc), cert. denied, 133 L.Ed.2d 658 (1996).

The Litigation

The ACLU's description of the plaintiffs.
The ACLU et. al's complaint.
The ACLU's brief.
The Justice Department's brief.
ACLU v. Reno, Civ. Act. No. 96-963, 1996 U.S. Dist. LEXIS 1617.

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Last modified: Feb 2, 1998